This morning I spent an hour debating David Cole of Georgetown on Wisconsin Public Radio. The question was whether we should read Miranda rights to suspected terrorists. Not a lot of sparks. I tend to believe that the public safety exception to Miranda should be broad enough to include (in some way that requires further definition) questioning undertaken to protect the public from an ongoing terrorist operation or to determine that there is no such ongoing operation. I don’t agree that Miranda is completely off the table just because the suspected charge is terrorism. While Professor Cole wants a more immediate geographically bound exception that I’d draft, the devil is in the details.
On more fundamental level, it doesn’t seem that deferring Miranda rights is among the most difficult legal trade-offs in the war on terror. Both its value to national security and its imposition on the rights of suspects is limited.
I would have preferred to discuss Holder v. Humanitarian Law Project, a case currently pending before the Supreme Court in which Professor Cole represents the plaintiffs.
The case presents, among other things, a facial challenge to 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization ….”
The case, which was argued on February 23, presents some interesting constitutional questions regarding the impact of the law on constitutionally protected speech and rights of association. It raises some fascinating question regarding whether it is possible to distinguish the “peaceful” and “violent” aims of terrorist organizations.
Professor Cole did manage to mention the case and to point out that the government had conceded at oral argument that the law could apply to filing an amicus brief.
It’s true that the government’s lawyer did say at oral argument (pp. 47-49; although the position was also taken below) that the statute might apply to filing an amicus brief for a terrorist organization if the organization itself was the amicus party (although not a brief that might take a position favorable to the position of such an organization.)
The government’s lawyer? Solicitor General Elena Kagan. I’m not sure what to make of that, but I thought it was interesting.
Cross posted at Shark and Shepherd.
Readers may also be interested to know that in Padilla v. Kentucky, her amicus brief on behalf of the United States argued that, though the affirmative mis-advice that Padilla received could constitute ineffective assistance of counsel, “Counsel’s Sixth Amendment Obligation at the Plea Stage Does Not Extend to Providing Advice Beyond the Scope of the Criminal Case.” The majority rejected this argument, noting that “it would give counsel and incentive to remain silent on matters of great importance, even when answers are readily available,” and “would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.” I agree with that reasoning and was disappointed that the Obama administration, via Solicitor General Kagan, took that position in Padilla.